M.C. Mehta v Union of India (1988) — the Ganga pollution cases

They are the working model of the Water Act 1974 enforced through Art. 32, and they are the reason chapter 7 treats the Act's consent-and-standards machinery as justiciable rather than merely administrative. Between them they establish:

1. That a public interest petition about a river may be treated as a representative action under O. 1 r. 8 CPC, with notice by newspaper publication to every industry and municipality on the river's course.
2. That financial incapacity is no defence to the obligation to treat effluent — the tannery that cannot afford a primary treatment plant must close.
3. That municipal bodies are liable too, and that a public interest petitioner may enforce their statutory duties.
4. That the courts' own procedures must not be used to defeat enforcement — hence the direction on s. 482 CrPC stays.

The two judgments are always cited together, and the second expressly continues the first.

The petition and its form

"This is a public interest litigation." The petitioner, described as "an active social worker", sought a mandamus restraining the respondents "from letting out the trade effluents into the river Ganga till such time they put up necessary treatment plants". The respondents included the Union of India, the Chairman of the Central Board, the Chairman of the Uttar Pradesh Pollution Control Board and the Indian Standards Institute.

The procedural innovation. The Court directed "the issue of notice under O. 1, R. 8 of the Code of Civil Procedure treating this case as a representative action", by publishing the gist of the petition "in the newspapers in circulation in northern India" and calling on "all the industrialists and the municipal corporations and the town municipal councils having jurisdiction over the areas through which the river Ganga flows" to show cause. A large number of industrialists and local bodies then appeared.

The Court's framing

"Water is the most important of the elements of nature." "River valleys are the cradles of civilization from the beginning of the world." The Court noted that "It is the popular belief that the river Ganga is the purifier of all", and that action was now needed "since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe". The river is "the life sustainer of a large part of the northern India".

It set out Art. 48-A and Art. 51-A(g) and then quoted at length the Proclamation of the Stockholm Conference (5 to 16 June 1972), in which the Indian delegation led by the Prime Minister took a leading role. The passages are the best in-source text for chapter 4:

"Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth." Both aspects of man's environment, natural and man made, "are essential to his well being and to the enjoyment of basic human rights - Even the right to life itself." "The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world, it is the urgent desire of the peoples of the whole world and the duty of all Governments." "A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well-being depend." "To defend and improve the human environment for present and future generations has become an" imperative goal for mankind.

Among the common convictions the Court listed the one that became the customary rule of transboundary harm: "that States have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other States or areas beyond the limit of national jurisdiction".

The statutory scheme, as the Court set it out

The Water Act 1974 was passed "pursuant to resolutions passed by all the Houses of Legislatures" of twelve States under Art. 252(1), and was adopted by Uttar Pradesh by resolutions in 1975. Section 24 prohibits the use of any stream or well for disposal of polluting matter. Section 2(j) defines stream as including "river, water course whether flowing or for the time being dry, inland water whether natural or artificial, sub-terranean waters, sea or tidal waters" to the extent notified. Sections 16 and 17 set out the functions of the Central and State Boards. Trade effluent "includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any trade or industry, other than domestic sewage".

The State Board must lay down standards of treatment "taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream", and may apply to courts "for restraining apprehended pollution of water in streams or well".

The Court's criticism was blunt: "Notwithstanding the comprehensive provisions contained in the Act no effective steps appear to have been taken by the State Board so far to prevent the discharge of effluents of the Jajmau near Kanpur to the river Ganga."

And the answer to a defence students often think decisive: "The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality."

On the Environment (Protection) Act 1986, in force from 19 November 1986, the Court set out s. 3 (the general power), s. 2(a) (environment), s. 3(2)(iv) (standards for emission or discharge), s. 5 (directions, including "the power to direct the closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of the supply of electricity or water or any other service"), s. 9 (the duty on every person to prevent or mitigate pollution) and s. 15 (penalties). Its verdict was equally blunt: "not much has been done even under this Act by the Central Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur".

The facts on the ground

The tanneries had themselves formed the Jajmau Tanners Pollution Control Association, whose objects included "To set up and maintain common effluent treatment plant for member tanners in and around Jajmau" and to make periodical charges on members for effluent treatment.

Under the Ganga Action Plan an integrated sanitation project was being taken up for Jajmau. Medium and large units were to set up pretreatment facilities; the Central Leather Research Institute was examining pretreatment "including recovery of materials such as chromium"; and a treatment plant of 25 MLD capacity was proposed at a cost of about Rs. 2.5 crores, of which about 20 MLD would be domestic and 5 MLD from the tanneries after pretreatment.

It was admitted that the tanneries discharge into a sewage nullah leading to the municipal sewage plant, and "It is not disputed by any of the respondents that the water in the river Ganga is being polluted grossly by the effluent discharged by the tanneries." Six tanneries had already set up primary treatment plants; about fourteen were building them.

The holding — cost is irrelevant

The respondents said that a secondary treatment system was beyond their means. The Court accepted that, and then held that the primary plant was the irreducible minimum. The costs on the record were Rs. 3,68,000 for an A class tannery, Rs. 2,30,000 for a B class and Rs. 50,000 for a C class — "This cost does not appear to be excessive."

Then the sentence that is the point of the case:

"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence", because the adverse effect on the public "would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure".

The Court added that the tanneries "are not taken by surprise", having been asked for years to act, and recorded the comparative magnitude of the harm: "the effluent discharged from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks".

The orders in Ganga I

1. Tanneries that had not entered appearance despite notice: "an order directing them to stop working their tanneries should be passed".
2. Tanneries that had already set up primary treatment plants may continue "subject to the condition that they should continue to keep the primary treatment plants established by them in sound working order".
3. Tanneries represented by counsel were granted time till 31 March 1988 to set up primary treatment plants approved by the State Board; "If any of these tanneries does not set up a primary treatment plant within 31.3.1988 it is directed to stop its business with effect from 1.4.1988."
4. A direction to the Central Government, the Uttar Pradesh Board and the District Magistrate, Kanpur "to enforce our order faithfully".
5. The case adjourned to consider the municipal bodies — which produced Ganga II.

Standing and the nature of the wrong

The Court explained the functions of the Boards under ss. 16 and 17: those of the Central Board "are primarily advisory and supervisory in character" — advising the Central Government, co-ordinating the State Boards, providing technical assistance and sponsoring research — while "The functions of the State Board are more comprehensive", including planning a comprehensive programme for prevention and control, inspecting sewage and trade effluent works, reviewing plans in connection with consent, and evolving "economical and reliable methods of treatment of sewage and trade effluents".

On standing. The Court began from the common law: a municipal corporation "can be restrained by an injunction in an action brought by a riparian owner" who has suffered from pollution caused by its discharge of insufficiently treated sewage, citing Pride of Derby and Derbyshire Angling Association v British Celanese Ltd., where the Court of Appeal held "that it was not inevitable that the work constructed under the Act of 1901 should cause a nuisance, and that in any case the Act on its true construction did not authorise the commission of a nuisance".

Then it converted the private-law rule into a public-law one:

"The nuisance caused by the pollution of the river Ganga is a public nuisance, which is wide spread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large."

Hence the petitioner "is entitled to move this Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water Act". This is one of the clearest statements in Indian law of why environmental standing must be relaxed: the harm is diffuse, so no individual has the incentive to sue.

The finding: "On account of their failure to obey the statutory duties for several years the water in the river Ganga at Kanpur has become so much polluted that it can no longer be used by the people either for drinking or for bathing. The Nagar Mahapalika of Kanpur has to bear the major responsibility for the pollution of the river near Kanpur City."

On the works under the Ganga Action Plan: "the works are going on at a snail's pace".

The directions in Ganga II

1. The Kanpur Nagar Mahapalika to complete works within the target dates in its own affidavits, and to submit its proposals for sewage treatment works: "The Kanpur Nagar Mahapalika should submit its proposals to the State Board within six months from today.".
2. The dairies. There were about 80,000 cattle in dairies in Kanpur. The Mahapalika to act under the Adhiniyam or bye-laws, either directing the dairies to be shifted outside the city or arranging removal of the waste by motor vehicles, "in which event the owners of the dairies cannot claim any compensation"; and to prevent "the collection of manure at private manure pits inside the city".
3. "immediate steps to increase the size of the sewers in the labour colonies", and to lay sewerage lines where none exist.
4. Public latrines and urinals for the poor "in order to prevent defecation by them on open land" — and, importantly, "The proposal to levy any charge for making use of such latrine and urinals shall be dropped as that would be a reason for the poor people not using the public latrines and urinals." Maintenance costs to be borne by the Mahapalika.
5. Section 482 CrPC stays. Prosecutions under the Water Act were being frustrated by stay orders. "the High Courts should not ordinarily grant orders of stay of criminal proceedings in such cases", and where a stay is granted in an extraordinary case the High Court "should dispose of the case within a short period, say about two months". The Court requested the High Courts to take up all such stayed cases within two months, the Board's counsel to furnish a list to the Registrar.
6. Corpses. The practice of throwing corpses and semi-burnt corpses into the Ganga "should be immediately brought to an end", with the cooperation of the people and the police.
7. New industries. "Whenever applications for licences to establish new industries are made in future, such applications shall be refused unless adequate provision has been made for the treatment of trade effluents flowing out of the factories."
8. Environmental education. Relying on Art. 51-A(g), the Court held it "the duty of the Central Government to direct all the educational institutions throughout India to teach at least for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, rivers and wild life in the first ten classes", with text books written and distributed free of cost, teacher training by short courses, and instruction beginning with cleanliness of the house and street — "Clean surroundings lead to healthy body and healthy mind."
9. Cleanliness weeks. Governments to consider organising a keep the city clean week and its town and village equivalents at least once a year, organised by the local authorities, with citizens, legislators and members of the judiciary requested to take part "by rendering free personal service".
10. Extension. "What we have stated above applies mutatis mutandis to all other Mahapalikas and Municipalities which have jurisdiction over the areas through which the river Ganga flows." Every such body in Uttar Pradesh to file an affidavit within six months explaining the steps taken.

1. A public interest petition concerning a river may proceed as a representative action under O. 1 r. 8 CPC, with public notice to all polluters on its course.
2. Financial incapacity is no answer to the duty to treat effluent; a tannery that cannot afford a primary treatment plant must stop.
3. Discharging into the municipal sewer does not absolve an industry, because the effluent reaches the river all the same.
4. Public nuisance from river pollution is diffuse, so a public-spirited petitioner may enforce the statutory duties of municipal authorities and Boards under Art. 32.
5. Courts should not, by routine s. 482 CrPC stays, defeat prosecutions under the Water Act.

1. Name them Ganga I and Ganga II and give the two dates. Most answers blur them; separating them is worth a mark by itself.
2. Ganga I for the tanneries: representative action, the Stockholm proclamation, the Water Act scheme, and above all the minimum wages analogy — quote it.
3. Ganga II for the municipality: the public nuisance passage on standing, the snail's pace finding, and the directions on dairies, latrines without charge, s. 482 stays and refusal of licences.
4. Add the education direction — one hour a week in the first ten classes — as an illustration of how far the Court took Art. 51-A(g).
5. Link forward to Vellore, where the same problem of tanneries reappears in Tamil Nadu and is met with the polluter pays principle and an authority under s. 3(3) of the Environment Act.